Reading Employees’ Text Messages: A Heads Up for Public Agencies

by Richard H. Lam

Richard H. Lam is an associate with the law firm of Alvarez-Glasman & Colvin and can be reached at rlam@agclawfirm.com.

How much privacy does an employee have in his or her workplace computer? What about the text messages in a wireless device provided by the employer? While there have been many cases that have clarified an employer’s ability to monitor e-mail on workplace computers, it is not clear whether monitoring text messages on wireless devices — a common business practice — is legal.

The U.S. Supreme Court recently stated that it would rule for the first time on whether employees have a right to privacy when they sent text messages on electronic devices supplied by their employers. The case is expected to provide some clarification in a growing area of controversy: the crossroads of technology and personal privacy. Regardless of the outcome, this decision is expected to take a significant step towards defining the nuances of one’s reasonable expectation of privacy in new forms of technology.

The court will review a case titled Quon v. Arch Wireless.1 In that case, the City of Ontario was successfully sued by police Sergeant Jeffrey Quon and three other officers after their text messages — some of which were sexually explicit — were read by the police chief. On appeal, the Ninth Circuit of the U.S. Court of Appeals decided that the City of Ontario Police Department violated the Fourth Amendment when it reviewed Sgt. Quon’s text messages.

Like many employers, the Ontario Police Department issued Sgt. Quon a wireless device for work-related communications. And like many employers, the Ontario Police Department required Quon to sign a general “Computer Usage, Internet and E-mail Policy” that stated the use of computers and/or text messaging equipment for personal purposes is a violation of the policy and that users should not expect privacy in such communications.

In the past, these policies have been held to wipe out any reasonable expectation of privacy that an employee might have in their e-mails and text messages.2 In Quon, however, the Ontario Police Department limited the number of text messages Quon was permitted. According to the official policy, the text messages were subject to audit/review and if an officer exceeded the limit, the officer was personally required to pay for the overages. However, Quon’s lieutenant made it clear that as long as the officer paid for any incurred overages, text messages would not be audited. On the several occasions when Quon exceeded his limit, he paid for his overages and no one audited or reviewed his text messages.

Based on the informal precedent that his lieutenant had established and enforced, the court held that it was reasonable for Quon to have an expectation of privacy despite the department having a written policy prohibiting personal use with no expectation of privacy. The court stated that given the variety of work environments in the public sector, the question of whether an employee has a reasonable expectation of privacy must be determined on a case-by-case basis.3

Given the fact that Quon had a reasonable expectation of privacy, the court turned to whether the search of his text messages was reasonable under the circumstances. The court has stated that a search is reasonable if there are reasonable grounds for the search and the scope of the search is “reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the misconduct.”4 In the Quon case, the court held that the Ontario Police Department’s purpose was reasonable because it was to ensure that officers were not being required to pay for work-related expenses. However, the court found the scope of the search to be unreasonable because the Ontario Police Department obtained and reviewed all of Quon’s text messages. The court suggested that the Police Department could have used less intrusive means by asking Quon to count the text messages himself or having Quon redact personal messages and grant permission to review the redacted transcript.

When it comes to the scope of a search by state action, the courts have jealously guarded individual freedoms by demanding a narrowly tailored search. The law of Fourth Amendment search and seizure is based on the notion that the risk of government violation of individual rights is inherently high and the potential harm is great.5 With such an exacting standard, employers must carefully analyze the means used and the breadth of the review so as to minimize intrusiveness upon any reasonable expectations of privacy of the individual employee.

Therefore, public entities should be cautious in reviewing employee communications based on the assumption that they are not private. Employers should avoid giving employees any reasonable expectation of privacy as such course of conduct could undermine an employer's computer usage policy. And as demonstrated in the Quon case, this can be done inadvertently by a non-policymaker.

The decision shows that courts will look beyond written policies and consider the reality of the monitoring to see if the review of electronic communications is appropriate. In addition, the court will look at the employers’ course of conduct to ensure if the monitoring policy is followed consistently.

Employers, and in particular public employers, should be ready for the Supreme Court’s decision by having clear and precise monitoring policies that are consistently followed and effectively enforced. Text messages, no doubt, should be included in such monitoring policies.

A decision in the case is expected this summer.

Footnotes:

1 Quon v. Arch Wireless Operating Co., (9th Cir. 2008) 529 F.3d 892.

2 See Muick v. Glenayre Electronics (7th Cir. 2002) 280 F.3d 741.

3 O’Connor v. Ortega (1987) 480 U.S. 709, 718.

4 O’Connor v. Ortega (1987) 480 U.S. 709, 726.

5 The 4th Amendment applies only to the government; many judges rely on the high court's privacy rulings in deciding disputes in the private sector.